Appellate judge on D.C. Circuit seen as early favorite on Trump's Supreme Court shortlist

President Trump will have the opportunity to nominate the second Supreme Court justice of his tenure following the retirement of Anthony Kennedy. Kennedy, who will step down on July 31, has served as a swing vote on the court since 1988, and his replacement will alter the composition of the court going forward.

Trump said Wednesday he will use the same list of names from which he chose Neil Gorsuch, who was confirmed to replace Antonin Scalia in 2017. The list, updated in November 2017, contains 25 names. They are mostly conservative members of state supreme and federal appellate courts.

Bloomberg and the Los Angeles Times are both reporting that the favorite is Brett Kavanaugh. Kavanaugh, 53, is a federal appellate court judge based in Washington, D.C., who previously clerked for Kennedy. Kavanaugh’s confirmation to the appellate court took three years from his nomination in 2003 until he was confirmed by a 57-36 vote in May 2006.

Prior to the vote, Kavanaugh was blasted as an “unqualified judicial nominee” by the New York Times. The Times wrote that his resume “screams political partisanship” and pointed to his role in helping Kenneth Starr draft the possible grounds for impeachment for President Bill Clinton and writing and co-writing his own op-ed that called Starr “an American hero.” The National Review wrote in 2016 that Kavanaugh’s opinions were “clear, consistent, thorough, and thoughtful” and had an “analytical clarity” that would make Scalia proud.

Judge Brett Kavanaugh (Photo: US District Courts)

The blog Empirical SCOTUS, in an analysis written last December touting Kavanaugh as a possible replacement for either Kennedy or Justice Ruth Bader Ginsburg, said he would most likely be “to the right of either Justice Kennedy or Ginsburg on the Court but not as far to the right as Justice [Clarence] Thomas.”

One nonjudge on the list is Sen. Mike Lee, R-Utah. Lee has a law degree from Brigham Young University and clerked at the federal level before serving as an assistant U.S. attorney and general counsel for the Utah governor’s office. Lee was elected to the Senate in 2010 and said Wednesday he would “of course” accept the nomination if Trump chose him.

One name not on the list is Fox News commentator Jeanine Pirro, a former district attorney of Westchester County, N.Y., known to be a favorite of Trump’s. Donald Trump Jr. retweeted a post about her as a possible nominee, adding “This would be pretty awesome,” but with emoticons suggesting he meant it as a joke.